By Clairissa Baker
BU News Service
Former Massachusetts Governor Deval Patrick has been suggested as a potential pick for the open seat on the Supreme Court, but with President Obama in his final year in office, the nomination is unlikely.
Patrick, a two-term governor of Massachusetts, graduated from Harvard Law School and served as Assistant Attorney General for Civil Rights.
“I do know that in the past people have floated Deval Patrick’s name,” Boston University Law Professor James Fleming said in a phone interview.
This is partly because Patrick had some national visibility. “In ordinary circumstances, Deval Patrick would be among the people Obama would and should consider,” Fleming said, but “it is inconceivable that would go forward in the present circumstance.”
After Justice Antonin Scalia died, Republican senators declared they would refuse to hold a hearing for a nominee until the next president takes office in 2017.
With the balance of the Court at stake, the Republicans are playing what Fleming described as “Constitutional hardball.”
Historically, the Court has a record of judges with backgrounds such as governors and attorney generals, Fleming said. Patrick’s career follows suit.
Boston University Law Professor Jack Beermann described Patrick as a politician who is “very strongly aligned with the president.”
Patrick represents what the Republicans intend to avoid — an appointment that tips the balance of the Court in favor of the Democrats.
Because of the current situation, “Obama will not nominate a blue-state governor with two blue-state senators,” Fleming said.
According to a phone interview with Boston College Law Professor Richard Albert, the Senate “has the Constitutional authority to refuse to hold the hearings,” and Obama has three options in light of the Senate’s obstruction.
Obama can still nominate a progressive, knowing that the Republicans will not approve the nominee. He could also nominate a moderate or conservative.
“He will have problems no matter which of the three he chooses,” Albert said.
However, if Obama nominates a conservative or moderate, he may have a chance to get that person approved.
“I don’t know how likely either of those scenarios are,” Beermann said.
Fleming sees Obama’s only hope of obtaining a hearing as a nomination of someone the Republicans are on record for supporting. He believes the best option is to choose a moderate or conservative from a Republican state who is already confirmed as a judge.
There is no way to force the Senate to hold a hearing. Obama’s prospect of receiving a hearing rests on a nomination of a candidate the Republicans can support, and Patrick does not fit that profile.